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WHAT CAN YOU SAFELY TELL YOUR SPOUSE? (Wednesday, June 19, 2013)

A jury convicted Phillip Hamilton of federal program bribery and extortion. While serving as a state legislator, Hamilton secured state funding for a public university in exchange for employment by the university.

By way of background, Hamilton was a legislator for more than a decade. He also worked as an administrator and then a part-time consultant for the Newport News public schools system.

In August 2006, Hamilton arranged to meet with officials from Old Dominion University, to discuss state funding for a new Center for Teacher Quality and Educational Leadership.

Before this meeting, using his public school workplace computer, Hamilton and his wife exchanged emails discussing their financial difficulties, and their hope that the new Center would give a job to Hamilton.

Hamilton was charged with bribery and extortion. He challenged the district court’s admission into evidence of emails he sent to and received from his wife. Hamilton maintained that the admission into evidence of these emails violated the marital communications privilege. Hamilton was convicted on both charges and appealed his conviction.

Communications between spouses, privately made, are generally assumed to have been intended to be confidential.

The idea is that marital confidences are regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.

To be privileged, a communication between spouses must be confidential; voluntary disclosure of such a communication waives the privilege.

The prosecution maintained that Hamilton waived the marital communications privilege by communicating with his wife on his workplace computer, through his work email account, and by subsequently failing to safeguard the emails.

In turn, Hamilton focused on the fact that, in 2006, when he used his workplace email system to send the emails at issue, the school system had no computer usage policy.

While that was true, the school system adopted a computer policy before the 2009 investigation of Hamilton. The computer policy expressly provided that users had no expectation of privacy in their use of the computer system and all information created, sent, received, accessed, or stored in the computer system was subject to inspection and monitoring at any time. It was undisputed that forms accepting this policy were electronically signed in Hamilton’s name and that Hamilton had to acknowledge the policy by pressing a key to proceed every time he logged onto his work computer.

Hamilton maintained that he did not waive the privilege because he had no reason to believe that the e-mails were not privileged at the time he sent or received them.

The district court found that Hamilton did not take any steps to protect the emails, even after he knew of his employer’s new policy permitting inspection of emails stored on the system.

Thus, Hamilton did not have an objectively reasonable belief in the privacy of his files after his employer’s policy put him on notice that it would be overseeing his Internet use.

The appeals court observed that other federal courts of appeal have also made clear that a party waives the marital communications privilege when he fails to take adequate precautions to maintain confidentiality, citing to SEC v. Lavin, 111 F.3d 921, 930 (D.C.Cir.1997) and United States v. de la Jara, 973 F.2d 746, 749-50 (9th Cir. 1992).

The district court’s conclusion that the emails were not subject to the marital communications privilege constituted no abuse of discretion.